The materials in our Resources section are for informational purposes only, without any representation that they are accurate or complete. These publications do not constitute legal advice and do not create an attorney-client relationship between the reader and any other person, nor are they an offer to create such a relationship. These publications are current as of the date written, but laws change over time and vary from state to state. As a result, the information presented here may not be timely and/or appropriate for any state not specifically addressed in a publication. Consult an attorney if you have questions regarding the content of any publication.

Revised on May 27
On Friday, May 15, 2020, the SBA released its Paycheck Protection Program (“PPP”) Loan Forgiveness Application and detailed instructions that must be completed by borrowers and submitted to their lenders in order to obtain forgiveness. The Application provides greater clarity about what payments can be forgiven, provides more flexibility regarding costs, and reduces borrower compliance requirements, simplifying the process for borrowers. The SBA also announced that it will soon issue regulations and guidance to further assist borrowers as they complete their Applications and to provide lenders with guidance on their forgiveness responsibilities. This article covering the application provides changes to and further information on PBPA’s Loan Forgiveness article.

Many organizations have halted in-person operations, stopped using volunteers, and changed the way they are providing services to clients during the COVID-19 pandemic. This article will summarize some of the things nonprofits should start to consider as the shelter-in-place requirements are loosened and nonprofits consider whether to re-engage in person with clients and volunteers. Please be aware that this article is not intended to induce any organization to re-open facilities or invite clients or volunteers to enter before it is safe or feasible to do so, but is intended to help you to start thinking about those items that need to be considered before and when you do re-open.

The CARES Act (Coronavirus Aid, Relief, and Economic Security Act), passed in the U.S. Congress and is expected to be signed into law. Among many other things, the Act amends the Small Business Act to create a new Paycheck Protection Business Loan Program. For a limited time, the Small Business Administration (SBA) will provide 100% federally-backed loans to nonprofit organizations with 500 or fewer employees to help pay operational costs like payroll, rent, health benefits, insurance premiums, utilities, etc. Under the CARES Act, some of these loan amounts are forgivable. However, the amount that may be forgiven will be reduced if the employer makes any employee cuts or reductions in wages. This article provides details on the Paycheck Protection Business Loan Program.

Updated April 6, 2020
Please see this link for Frequently Asked Questions related to the new Family and Sick Leave obligations imposed by the Families First Coronavirus Response Act and other employment and benefits questions you may have as you are managing your workforce through this crisis. Please be aware that these FAQs have been updated to reflect additional guidance issued by the U.S. Department of Labor at the end of March 2020. Please contact your PBPA attorney if you have additional questions

The Families First Coronavirus Response Act (the “Act”) was signed into law on March 18, 2020 and goes into effect on April 2, 2020. This law is a financial aid package intended to address the Coronavirus outbreak. It includes several employment-related provisions that affect will employers with fewer than 500 employees, including nonprofits. Employers are required to provide family leave for public health emergencies and paid sick leave. Employers have 15 days to determine how they will comply with the Act and start implementing it. They will also need to provide notice to employees of these new requirements through postings and policies. While the Act provides the Department of Labor with the ability to issue regulations to exempt certain employers with fewer than 50 employees from the family leave requirements, please be aware that no such regulations have, as yet, been issued. See this new Legal Alert for more information.

Unfortunately, in this new world of the COVID-19 pandemic, many of our clients are being faced with the need to curtail operations, and either reduce employee hours or lay off employees. Here is a notice from the Georgia Department of Labor about a requirement for all Georgia Employers to file partial unemployment claims on behalf of employees working less than their regular hours due to the COVID-19 outbreak. An employer that fails to file a claim if an eligible reduction in hours or layoff occurs may be held responsible for repaying the agency for any benefits paid to employees.

New information and legislation surrounding COVID-19 (the novel coronavirus) is coming out daily as the situation rapidly changes. PBPA, with our staff and network of dedicated volunteers, are working hard to keep you up-to-date on all the legal questions you might have for your nonprofit organization. There is a vast number of resources available online. Below is a short list of resources we would recommend to Georgia nonprofits and links that will lead you to more information.

The United States political system relies on the involvement and participation of its citizens in the election process. Historically, many groups have faced barriers to full participation in this system. §501(c)(3) organizations often wish to host and promote voter registration drives to increase voter participation in the communities and populations that they serve. It is important that §501(c)(3) organizations follow specific guidelines and rules to remain neutral in any election-related activity.

Under the Internal Revenue Code, §501(c)(3) organizations are absolutely prohibited from supporting or opposing any candidate for public office(1). Examples of prohibited activities include endorsing candidates, opposing candidates, promoting or opposing political parties, making contributions to candidates’ campaigns, or engaging in any biased or “partisan” election-related activities. Bias is the main concern, and organizations must maintain a strict “nonpartisan” stance. If a §501(c)(3) organization does not comply with this rule, the IRS may revoke its §501(c)(3) tax-exempt status, and/or impose taxes on both the organization and its managers.

This article provides an overview of how §501(c)(3) organizations can effectively and safely conduct voter registration drives in the state of Georgia. All employees and volunteers must understand the laws, limits and rules before participating in a voter registration drive. It is also essential for §501(c)(3) organizations to review Georgia’s Voter Registration Rules and Procedures. This document must be printed and reviewed prior to the date of your voter registration drive. Included in the document are certain notices that must be given to applicants, required checklists, and transmission forms.

Organizations wishing to sponsor a voter registration drive may also participate in optional training by their County Board of Registrars’ Office. To request training, submit a Voter Registration Drive Training Request, which can also be found in the above-linked materials.

Important Dates.
Generally, the deadline to register to vote is 28 days prior to the next election. All completed applications must be transmitted to the Secretary of State’s Office before midnight on the close of the registration period. In the event that this date falls on a Saturday, Sunday, or legal holiday, then the deadline to register to vote is the next succeeding business day. The Georgia Secretary of State’s website lists Key Election Dates for each specific year.

Who May Register to Vote? All qualified applicants who want to register must be allowed to register. The only reason a §501(c)(3) organization may refuse to give someone an application is if the person does not meet the qualifications and is therefore not an eligible voter.

The qualifications to register to vote are:
A. Applicant is a citizen of Georgia and of the United States;
B. Applicant resides at the address shown on the voter registration application;
C. Applicant is at least 17 and ½ years of age;
D. Applicant has either never been convicted of a felony involving moral turpitude or has completed the sentence for the felony; and
E. Applicant has either never been judicially determined to be mentally incompetent or has had the disability removed.

When conducting a voter registration drive, let applicants know that they are not officially registered until the State records their application. Encourage everyone to check their registration status and polling place online before election day. If a person says s/he is already registered, still encourage the person to check his or her registration status online. Also, ask if the person has moved recently and make sure that the person is registered at his or her current address. And importantly, make sure that all applicants know about their right to cast a provisional ballot in case there is some complication with their registration. The Georgia My Voter Page is the online portal available to verify this information.

When planning a voter registration drive, consider your organization’s target audience and choose location(s), date(s), and time(s) that would best reach this audience. An organization may choose the location to hold its drive by targeting low-income, minority, low-turnout, homeless or student populations. An organization may not target a particular group because they tend to belong to a political party or voted for a certain candidate previously. For example, a §501(c)(3) organization might conduct tabling efforts in the lobby of its office or location, at an event sponsored by the organization, or the §501(c)(3) organization might integrate voter registration into its existing service and outreach efforts. And always remember, the voter registration drive cannot be influenced by, affiliated with, or support any political candidate or party.

What identification is required?
To register, a person must have a valid identification document. A copy of the ID must also be submitted either with the application or prior to or at the time of voting. Make sure to tell applicants about these ID requirements so that they are prepared on election day.

The most common form of ID is a valid government-issued ID card, which includes a FREE Voter ID card or Driver’s License (even if expired). Other acceptable forms of ID include a bank statement, a paycheck, a government check, or any other government document that shows the applicant’s name and address. The Georgia Secretary of State’s website explains Identification Requirements in greater detail.

Application Security.
An organization must take care to keep all completed applications secure and confidential at all times. Applications should always be kept sealed. The State will not accept unsealed applications without a signed acknowledgment from the applicant.

All applications must be filled out by the applicant, with limited exceptions for individuals who are illiterate or disabled. In such a case, the volunteer assisting the applicant must sign his or her name in the appropriate section of the application. No one from the organization can improperly assist applicants in filling out the application.

Application Submittal.
Organizations must submit completed applications on time in order for them to count! Generally, all completed applications must be transmitted to the Secretary of State within ten (10) days of being filled out or by the close of the registration period, whichever is sooner. If a voter registration drive is held close to the end of the registration period, there is a shorter transmission period, though. If the application is completed within fourteen (14) days of the end of the registration period, then the application must be transmitted within seventy-two (72) hours of completion or by midnight on the close of the registration period, whichever is sooner. Also, let each applicant know that the applicant can submit his or her application on his or her own if the applicant does not want the organization to submit it for him or her.

Just as important as submitting the applications on time is submitting applications to the correct office. State and federal registration applications can be mailed to the Georgia Secretary of State. The address for the Elections Division of the Georgia Secretary of State is:
Elections Division, Office of the Secretary of State
2 Martin Luther King, Jr. Drive SE
Suite 802 Floyd West Tower
Atlanta, Georgia 30334-1505

When submitting applications, be sure to include a Transmittal Summary Form, which can also be found in the state materials linked to this article above.

Volunteer and Employee Conduct. Even the best-intentioned §501(c)(3) organization is only as good as the volunteers and employees it relies on. Improper actions by volunteers or employees can lead to serious consequences for the §501(c)(3) organization. Keep the following guidelines in mind when conducting a voter registration drive.

Do not assist someone in filling out a registration application, unless the applicant is illiterate or disabled. If someone requires assistance, the volunteer or employee assisting the person must sign the application in the appropriate section.

Do not refuse to accept or submit a registration application from a qualified individual.

Do not represent or imply that you or the organization is a representative of the Georgia Secretary of State or Board of Registrars.

Do not make any statement or action that would discourage someone from registering.

Do not be inebriated or impaired by drugs or alcohol while conducting voter registration or hold your voter registration drive in a place where alcohol is served or where you know that illegal or criminal activities occur.

Do not give any rewards or gifts to people who register. In Georgia, it is a felony to give or receive any gift for registering a voter. You can, however, hand out small giveaways like food, candy, stickers, or balloons to the general public. If you do, be clear that any giveaways are available to anyone who asks for them—not just voters or persons who register to vote.

that are generally associated with a particular candidate or party.

Do not register an ineligible voter, register a voter under anyone else’s name, or knowingly give false information when registering a voter. In Georgia, this is a felony.

If someone asks a volunteer or employee: (a) who the volunteer or employee supports for elected office or a specific political party, or (b) which candidate or political party the person should vote for or support, the volunteer or employee MUST NOT ANSWER. Instead, the volunteer or employee should remind the person that as a staff member/volunteer of a §501(c)(3) organization, the volunteer or employee must remain nonpartisan. Perhaps recommend that the person talk to a trusted friend or family member. A §501(c)(3) organization volunteer or employee is only permitted to discuss simple facts, like what party a candidate is in, if a candidate is an incumbent or challenger, or where a candidate lives. A volunteer or employee should only discuss these very basic facts and avoid further explanation. For example, a volunteer or employee should not explain the differences between Republicans and Democrats.

While guidelines surrounding election-related activities can seem daunting, if a §501(c)(3) organization remembers to remain unbiased and impartial, it can largely avoid stress or worry. When deciding where and how to conduct a voter registration drive, the organization should be sure to document every decision made at the time when it is made. For example, make records of why the organization is targeting a specific population or area, as well as any other major decision in the process. §501(c)(3) organizations that are considering holding a voter registration drive should contact their attorney for specific legal guidance before doing so.

1 The restrictions regarding political activity are different for §501(c)(4) and §527 corporations. This article focuses solely on legal implications governing political activity by §501(c)(3) organizations.

The U.S. political system relies on the involvement and participation of its citizens in the election process. Certain groups—such as the elderly, disabled, and poor who may lack transportation face particular challenges to participating in this process. Get-Out-the-Vote (“GOTV”) initiatives aim to increase voter participation by reminding voters of the date and location of their polling place and/or providing transportation to the polls on election day. §501(c)(3) organizations are allowed to engage in these sorts of activities. However, as with all election-related activities, §501(c)(3) organizations must act in a strictly unbiased and nonpartisan manner to maintain their §501(c)(3) status.

Under the Internal Revenue Code, §501(c)(3) organizations are absolutely prohibited from supporting or opposing any candidate for public office. Examples of prohibited activities include endorsing candidates, opposing candidates, promoting or opposing political parties, making contributions to candidates’ campaigns, and engaging in any biased or “partisan” election-related activities. Bias is the main concern, and organizations must maintain a strict “nonpartisan” stance. If a §501(c)(3) organization does not comply with this rule, the IRS may revoke its §501(c)(3) tax-exempt status and/or impose taxes on both the organization and its managers.
This article provides an overview of how §501(c)(3) organizations can conduct GOTV initiatives in Georgia. All §501(c)(3) organization employees and volunteers must understand the laws, limits and rules before participating in any GOTV initiative.

What can a §501(c)(3) do generally?

Remind individuals when the election is scheduled.

Provide information about where an individual’s polling place is located.

Provide sample ballots or other nonpartisan voter guides.

Offer transportation to and from polling places.

What must a §501(c)(3) organization avoid?

Attempting to promote or oppose a particular candidate or political party.

Only providing services, such as a reminder of the election date or transportation, to voters who support a particular candidate, party or issue.

Making biased statements or distributing biased materials.

Conducting a GOTV Initiative.
First, the §501(c)(3) organization should think about its target audience when choosing locations to focus its organization’s efforts. Will the organization be serving whole neighborhoods or concentrating specifically on the organization’s members or clients? When making such a determination, a §501(c)(3) organization may target low-income, minority, low-turnout, homeless, or elderly populations. The organization may not target a group because the group tends to belong to a political party or voted for a certain candidate in the past.

For example, a §501(c)(3) organization may target a neighborhood because its residents tend to be older, and thus, are more likely to need transportation services on election day. An organization may not target that area because its residents tend to vote more liberal or conservative. If a §501(c)(3) organization chooses to canvass a neighborhood, its volunteers or employees should go to every house. Do not avoid a house because it has a political sign out front for a candidate whose values do not align with the organization’s values.

In addition to providing transportation, encourage voters to check their registration status and polling place online before election day. Also, ask them if they have moved recently and make sure they are registered at their current address. Finally, make sure that all voters know of their right to cast a provisional ballot in case of a problem with their registration.

On election day, do not refuse transportation based on a person’s actual or perceived voting preferences. Volunteers should avoid any behavior that would discourage someone from voting. Remember, in conducting GOTV initiatives, the goal is to increase voter participation, not help a particular candidate.

Volunteers should also not discuss political parties or candidates. Even certain “wedge” issues—such as abortion rights—should be avoided, since the issue often implicitly advocates for one candidate or political party. Organizations may not give rewards or gifts to people to encourage or reward them for voting (in Georgia, this is a felony). While unlikely to be prosecuted, a volunteer or organization could even face liability for promising to take voters to eat on their way home from a polling place, so take great care not to reward people for voting in any way.

If someone asks a volunteer or employee: (a) who the volunteer or employee supports for elected office or a specific political party, or (b) which candidate or political party the person should vote for or support, the volunteer or employee MUST NOT ANSWER. Instead, the volunteer or employee should remind the person that as a volunteer/employee of a §501(c)(3) organization, the volunteer or employee must remain nonpartisan. Perhaps recommend that the person talk to a trusted friend or family member. A §501(c)(3) organization volunteer or employee is only permitted to discuss simple facts, like what party a candidate is in, if a candidate is an incumbent or challenger, or where a candidate lives. A volunteer or employee should only discuss these very basic facts and avoid further explanation. For example, a volunteer or employee should not explain the differences between Republicans and Democrats.

Perhaps, as a matter of best practice, the §501(c)(3) organization should have a policy that employees and volunteers are not allowed to engage in any discussion related to elections beyond the date, time, location of polling, and what measures or issues are on the ballot. When running GOTV initiatives, focus on the importance of voting, encouraging active citizenship, and giving a voice to the communities the organization serves. If volunteers drive voters in their own cars, make sure their vehicles do not have political campaign messages or information in or on them, such as a candidate’s campaign bumper sticker.

Finally, when undertaking GOTV initiatives that involve transportation, protect the organization by requiring volunteers and voters to sign releases of liability. Also make sure that all drivers are properly qualified and insured. And, make sure to document every decision the organization makes contemporaneously to when it is made. For example, if the organization will target a specific neighborhood, it should record why it is doing so and how it came to that decision.

If your organization has any questions about GOTV initiates, or is planning to sponsor an event, you should discuss further details and rules with your attorney prior to the event.

SECURE 403(b) plans 1-20The Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) made numerous changes to retirement plans, many of which apply to 401(k) plans. However, many of those changes also apply to 403(b) plans of nonprofit organizations. This article highlights the SECURE Act provisions that may affect 403(b) plans and is intended to be read with “SECURE Act Highlights for Employers” (https://www.nelsonmullins.com/idea_exchange/alerts/Comp-and-Benefits-Brief/all/secure-act-highlights-for-employers). Discussion of any tax credits has been omitted on the assumption that nonprofits do not have taxable income that could be reduced by tax credits.